I was coming out of a driveway turning left onto a main road. I was waiting for the traffic to clear going both ways because I knew that traffic on the street had the right way. One of the cars coming from my left had stopped and the driver motioned me to proceed into the roadway to make a left turn onto the roadway. However, at that moment, the car behind the courteous vehicle that had stopped for me, had passed the stopped car on the driver’s side going over the double yellow lines. The car that struck me had crossed over onto the oncoming traffic because they were apparently impatient. I ended up injuring my shoulder, which required surgery. What claims do I have?
No-Fault Claim
You should notify your own car insurance about the accident. They will send you a no-fault application. No-fault benefits will cover your medical expenses and part of your lost wages while you are recovering from your injuries. You must file the application within 30 days of your accident.
Personal Injury Claims
In addition to the claim for medical expenses and loss wages through no-fault, you also have a claim for your personal injuries. You should sue the other driver that struck you. From what you described, the driver that struck you became impatient with the car in front of it that was waiting for you to make your turn onto the roadway. The car that struck you crossed over onto oncoming traffic and violated the Vehicle and Traffic Law. Vehicle and Traffic Law § 1120.
You also potentially have a claim against the driver that stopped for you and gestured for you to make your turn. A motorist could be liable to other motorists and pedestrians when they gesture indicating that it is safe to proceed when it is not safe. Williams v Weatherstone, 23 N.Y.3d 384 at 401, 991 N.Y.S.2d 779 (2014), Yau v New York City Transit Authority, 10 AD3d 654, 781 NYS2d 778 (2d Dept 2004). So if a driver gestures a pedestrian or another driver to proceed and a third vehicle causes an accident, the gesturing driver could also be partly responsible for the accident. Ohlhausen v New York, 73 AD3d 89, 898 NYS2d 120 (1st Dept 2010).
Superseding cause
Even though a gesturing driver could be partly responsible for an accident when it negligently assumes a duty, that duty that the gesturing driver has assumed is relieved of responsibility by the superseding negligence of another driver. The test for superseding negligence is if the negligence is foreseeable. So in Esen v Narian,155 A.D.3d 612, 63 N.Y.S.3d 493 (2d Dept. 2017) the court dismissed a claim against a bus driver who had waived on a pedestrian to cross at a crosswalk. The pedestrian was struck by another driver who went through the stop sign without stopping and at an excessive rate of speed. The court found that the violation of the Vehicle and Traffic Law was not foreseeable by the bus driver.
There are other similar cases. Levi v Nardone, 178 A.D.3d 692, 115 N.Y.S.3d 101 (2d Dept. 2019) (gesturing driver was found not responsible for a pedestrian getting struck in an unmarked crosswalk because the offending driver did not see the pedestrian).
In your particular case, the impatient driver that struck your car violated the vehicle in traffic law by crossing over into oncoming traffic. This would not be foreseeable, and the gesturing driver would not be responsible.
By James Santner, Esq.
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